U.S. EX REL. BURKE v. DIRECTOR

UNITED STATES OF AMERICA EX REL. JOHN BURKE AND KENNETH EMERSON, PETITIONERS,v.DIRECTOR, DEPARTMENT OF CORRECTIONS, STATE OF ILLINOIS, RESPONDENTS.

The opinion of the court was delivered by: Bua, District Judge.

ORDER

In November, 1978, John Burke and Kenneth Emerson were tried
and convicted of armed robbery and felony murder in the
Circuit Court of Cook County. They are presently serving their
sentence of fourteen years to fourteen years and a day in the
Illinois Department of Corrections. Burke and Emerson appealed
their conviction to the Illinois Appellate Court, where the
decision of the trial court was affirmed. People v. Burke,
85 Ill. App.3d 939, 41 Ill.Dec. 230, 407 N.E.2d 728 (1st Dist.
1980). Subsequently, their petition for leave to file an appeal
to the Illinois Supreme Court was denied. This cause comes
before the court on Burke and Emerson's Petition for a Writ of
Habeas Corpus. Petitioners allege that the procedure, a
"stipulated bench trial," by which they agreed to have their
case heard in the state trial court, denied them their right to
due process under the fourteenth amendment to the United States
Constitution. Petitioners argue that the stipulated trial was
"tantamount to a plea of guilty," and that, because the
procedure was not preceded by the court's admonitions as to
petitioners' right of confrontation and privilege against
self-incrimination, their agreement to submit to it constituted
an ineffective waiver of these rights. Cf. Boykin v. Alabama,
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). After
carefully reviewing the record from the state court, this court
finds that, on the facts before it, petitioners' claim is
devoid of merit. Therefore, the Petition for a Writ of Habeas
Corpus is denied.

It is, of course, true that a defendant's plea of guilty
waives certain of his other constitutional rights and that
such a waiver, in order to be valid under the Due Process
Clause of the fourteenth amendment, requires the knowing and
intelligent assent of the accused. Johnson v. Zerbst,
304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Boykin v.
Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d
274. It is also true that the prerequisite of informed and
intelligent relinquishment of important rights is essential to
a defendant's valid consent to a stipulation of facts which
amounts to the "functional equivalent" of a guilty plea. Cox v.
Hutto, 589 F.2d 394, 395-96 (8th Cir. 1979); Achtien v. Dowd,
117 F.2d 989 (7th Cir. 1941). Such is not, however, the case
before this court. The record clearly indicates that when
petitioners voluntarily agreed to the stipulated trial
procedure, in no way did they in fact or "in effect" admit to
"all the elements of a formal criminal charge." Johnson v.
Zerbst, 304 U.S. 458, 466, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461
(1938). Rather petitioners, through their counsel, proceeded to
vigorously and thoroughly assert various legal arguments as
well as defenses and objections to the relevance and
sufficiency of the evidence. A review of the record indicates
that counsel (1) asserted a legal defense with regard to an
allegedly suggestive identification (R. 24); (2) objected to
the relevance of certain stipulated testimony pertaining to the
weapons used in the crime (R. 38-39); and finally (3) made a
motion for a directed finding in which counsel argued both that
the evidence was insufficient to connect the defendants to the
crime and that the facts coupled with the legal requirements of
felony murder could not support a finding of guilt with regard
to that charge (R. 43-45). Each of these objections and
assertions were considered and rejected by the trial judge.
Additionally, the trial judge made it clear that he alone would
decide petitioners' guilt or innocence (R. 26).

The court acknowledges the fact that there may be some cases
where a fact stipulation might be so conclusive as to an
accused's guilt of the crime charged, that it would "in
effect" amount to a plea of guilty and, without the
appropriate admonitions, require a finding that a defendant's
due process rights had been violated. For example, in the
recent case of Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979), the
court found that a defendant's conviction as a habitual
offender, based on a stipulation of four prior convictions made
by counsel without defendant's consent, "was the functional
equivalent of a guilty plea and [thus that] the state trial
court was required to question [defendant] to determine whether
he knowingly and voluntarily agreed to the stipulation." Id. at
396. The court explained that, because of the automatic nature
of the habitual criminal offense, the stipulation, like a plea
of guilty, left nothing to be done at trial but the giving of
judgment and the determination of the punishment. Id., quoting
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969). The distinction between the situation in Cox and
petitioners' case is obvious. Petitioners' stipulation to
certain facts in the trial court did not render meaningless
further advocacy and argument, nor, as the court has
demonstrated, were petitioners' attempts to contest various
issues in fact thwarted. The proceeding, despite the
stipulations, retained its adversary character, albeit in
somewhat abbreviated form.

For the foregoing reasons, the Petition for a Writ of Habeas
Corpus is denied.

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